The Lemon Test

Research by Jim Allison.
The Lemon test was formulated by Chief Justice Warren Burger in
the majority opinion in Lemon v. Kurtzman (1971). Lemon dealt
with Rhode Island and Pennsylvania programs that supplemented the
salaries of teachers in religiously based, private schools for
teaching secular subjects. The Court struck down both programs as
violating the establishment clause.

The purpose of the Lemon test is to determine when a law has the
effect of establishing religion. The test has served as the
foundation for many of the Court's post-1971 establishment clause
rulings. As articulated by Chief Justice Burger, the test has
three parts:

First, the statute must have a secular legislative purpose;
second, its principal or primary effect must be one that neither advances
nor inhibits religion; finally, the statute must not foster "an
excessive government entanglement with religion."

According to separationist scholars Barry Lynn, Marc Stern, and
Oliver Thomas, the fact that a law may have a "religious purpose
or be motivated by religion does not mean it is unconstitutional
as long as it also has a bona fide secular or civic purpose" (The
Right to Religious Liberty, p. 3). Similarly, "a law that has a
remote or incidental effect of advancing religion is not
unconstitutional as long as the effect is not a 'primary' effect"
(p. 3). Finally, the Court has allowed some entanglement between
church and state, as long as this entanglement is not "excessive"
(p. 3). Hence, the Court has built some leeway into the test so
as not to invalidate laws that have only remote connections to
religious practice. This is not, in other words, the work of a
Court that was hostile to religion. On the contrary, Justice
Burger, a Nixon appointee, is generally reckoned as a
conservative on social issues.

We note also that the Lemon test is squarely grounded on the
principles articulated in Everson v. Board of Education.
Accomodationist legal scholar Stephen Monsma, for example, notes
that Burger's opinion is:

Deeply embedded in...the sacred-secular distinction and the
Supreme Court's evaluation of the state's attempts to separate out the
two and subsidize only the latter. His opinion noted that at the
trial-court level several teachers had testified "they did not inject religion into
their secular classes." And the District Court found that religious
values did not necessarily affect the content of secular instruction. Burger
agreed, but made the additional, crucial observation that "the
potential for impermissible fostering of religion is present." He then
went on to conclude that under such circumstances state attempts to assure a
strict separation of the sacred and the secular would require
continuing state administrative supervision and surveillance,
resulting in state entanglement with religion (When Sacred and Secular Mix:
Religious Non-Profit Organizations and Public Money, pp. 32-33)

The Lemon test has not escaped criticism. Many scholars
(including separationists Leonard Levy and Donald Laycock) have
argued that the test is unduly subjective and internally
consistent, and it's usefulness has been questioned by a majority
of the sitting Justices. Still, as noted by Monsma,

...[the test] has not been formally overruled and the basic
principles on which it rests--no-aid- to-religion and the
sacred-secular distinction--still form the core of what is the dominant line of
reasoning dealing with public funds going to religious nonprofit
organizations (p. 33)